[Cite as Sammetinger v. Kirk Bros. Co., Inc., 2010-Ohio-1500.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

LOGAN COUNTY 

 

WILLIAM H. SAMMETINGER, 

 PLAINTIFF-APPELLEE, 

 v. CASE NO. 8-09-15 

BUREAU OF WORKERS’ COMPENSATION, 

 DEFENDANT-APPELLEE, 

 -and- O P I N I O N 

KIRK BROS. CO., INC., 

 DEFENDANT-APPELLANT. 

 

WILLIAM H. SAMMETINGER, ET AL., 

 PLAINTIFFS-APPELLEES, 

 v. CASE NO. 8-09-16 

CHRISTOPHER P. SAMMETINGER, ET AL., 

 DEFENDANTS-APPELLEES, 

 -and- O P I N I O N 

KIRK BROS. CO., INC., 

 DEFENDANT-APPELLANT. 

 

Appeals from Logan County Common Pleas Court 

Trial Court Nos. CV 08 05 0288 and CV08 07 0376 

Judgments Affirmed 

Date of Decision: April 5, 2010 

 
Case Nos. 8-09-15 and 8-09-16 

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APPEARANCES: 

Christine L. Robek and Scott R. Brown for Appellant, 

 Kirk Bros. Co., Inc. 

Richard E. Siferd and Walter M. Lawson, III for Appellees, 

 William H. and Sharon Sammetinger 

J. Stephen Teetor and Paul A. MacKenzie for Appellee, 

 Westfield Insurance Company 

James D. Utrecht for Appellee, Christopher Sammetinger 

Charissa D. Payer, Attorney for Bureau of Worker’s Compensation 

 

SHAW, J.

{¶1} In Case Number 8-09-15, the defendant-appellant, Kirk Brothers, 

Co., Inc. (“Kirk Bros.”), appeals the July 1, 2009 judgment of the Common Pleas 

Court of Logan County, Ohio, granting summary judgment in favor of the 

plaintiff-appellee, William Sammetinger (“William”), and denying Kirk Bros.’ 

motion for summary judgment, having found that William’s injuries occurred in 

the course of and arose out of his employment with Kirk Bros. In that same case, 

Kirk Bros. also appeals the September 3, 2009 judgment, awarding attorneys fees 

and court costs in favor of William and against Kirk Bros. 

{¶2} In Case Number 8-09-16, the defendant-appellant, Kirk Bros., also 

appeals the July 1, 2009 judgment of the Common Pleas Court of Logan County, 
Case Nos. 8-09-15 and 8-09-16 

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Ohio, granting summary judgment in favor of the defendant-appellee, Christopher 

Sammetinger (“Chris”), and partial summary judgment of the defendant-appellee, 

Westfield Insurance Company (“Westfield”). Additionally, Kirk Bros. appeals the 

August 7, 2009 judgment in this same case number, finding in favor of Westfield 

on its cross-claim for declaratory judgment against Kirk Bros., overruling Kirk 

Bros.’ motion to strike Westfield’s defense that William was injured in the course 

of and arising out of his employment with Kirk Bros., and dismissing Kirk Bros.’ 

cross-claim against Westfield, having determined that Westfield had no duty to 

defend or indemnify Kirk Bros. under its policy of insurance with Westfield 

because William was injured in the course of and arising out of his employment 

with Kirk Bros. 

{¶3} The undisputed facts relevant to these consolidated appeals are as 

follows. In June of 2007, William worked for Kirk Bros., a construction company, 

as a masonry superintendent. At that time, William was assigned to a job site in 

Powell, Ohio, where the company was building a new high school. William lived 

in Wapakoneta, Ohio, approximately seventy-eight miles west of the job site, and 

drove a company-owned truck to and from his home to the job site, where he 

supervised over fifty employees. During that summer, the employees assigned to 

the masonry work on the high school worked from 7:00 a.m. until 3:30 p.m. 

William, as supervisor, was also at the site during these times and was always the 
Case Nos. 8-09-15 and 8-09-16 

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last to leave, sometime between 3:30-4:00 p.m., because he was responsible for 

ensuring that the gang boxes and trailers at the site were locked for the night and 

that the material laid in the wall that day was counted. 

{¶4} As masonry superintendent, William had numerous responsibilities 

both on and off the job site. These responsibilities included supervising the 

masons and other laborers assisting on the masonry work, performing the layout 

for the masonry work, ensuring the accuracy of the work, coordinating the 

masonry work with other trades working on the construction of the high school, 

ensuring compliance with the project’s schedule, ensuring compliance with safety 

standards, ordering materials and equipment, and the hiring and firing of 

employees under his supervision. In addition, William often transported 

equipment to the job site from other Kirk Bros.’ construction sites, made trips to 

the local Home Depot and/or Lowe’s to buy supplies as needed, and provided 

transportation for other workers who needed a ride to work. 

{¶5} He also had administrative aspects to his position as masonry 

supervisor, including completing paperwork such as the time sheets of the workers 

and payroll, keeping a log of materials, keeping the minutes of job meetings he 

had, and completing requests for information to and from architects, engineers, 

etc. Once a week, William would deliver this paperwork to the home of his 
Case Nos. 8-09-15 and 8-09-16 

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supervisor, Denny Lange, in Lima, Ohio, approximately twenty miles north of his 

home in Wapakoneta. 

{¶6} As part of his job, William would also load a number of water 

containers and gasoline cans into the back of his work truck at the end of each day 

in order to fill them for the following day. He usually stopped at a gas station in 

Russells Point, Ohio, or at a station in Wapakoneta to fill the gas cans and to 

purchase ice for the next day. Every other day, he would also fill the gas tank in 

the truck when he stopped to fill the gas cans. William paid for the ice and the 

gasoline with a Kirk Bros. credit card. At home, William would clean the water 

containers and fill them for the next day. He also transported an assortment of 

small tools and equipment back and forth with him in the truck, which he would 

then park in his garage for safe-keeping due to criminal activity involving the theft 

of small tools at the job site. On occasion, William would also make minor repairs 

to this equipment, change filters in the cut-off saws, and other things of that nature 

while at home. 

{¶7} To facilitate his work, Kirk Bros. not only provided William with a 

company-owned truck but also with a cellular phone. William would often field 

calls on this cellular phone throughout the day, both before and after his shift at 

the job site. These calls were for a variety of work-related issues, such as calls 

from salesmen, suppliers, laborers seeking work, employees calling in sick, his 
Case Nos. 8-09-15 and 8-09-16 

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supervisors discussing the job, and the equipment manager calling to arrange a 

time to service a piece of equipment. He received these calls anywhere from 5:00 

a.m. until 10:00 p.m.; they lasted anywhere from thirty seconds to ten minutes; 

and they occurred while he was driving to and from the job site in the company 

truck, while he was at the site, and while he was home. 

{¶8} On June 14, 2007, William worked his normal shift at the job site. 

At the end of the day, William asked his son and fellow Kirk Bros. employee, 

Christopher Sammetinger (“Chris”), to drive the company truck to their home in 

Wapakoneta because he had a long day and was tired. Chris then drove their 

normal route home, taking U.S. Highway 33 westbound. Somewhere between 

Bellefontaine, Ohio, and Russells Point, Chris fell asleep. He awakened as the 

vehicle veered from its intended course and attempted to correct the vehicle’s path 

of travel. However, Chris lost control of the vehicle, causing it to leave the 

roadway and flip over. Both William and Chris were able to crawl out of the truck 

from the driver’s side window. They were each transported via ambulance to a 

local hospital, but William sustained life-threatening injuries and was transported 

to OSU Hospital in Columbus, Ohio. 

{¶9} As a result of the accident, William received multiple injuries and 

was comatose for approximately two months. Among his injuries were a broken 

shoulder, broken collarbone, lumbar fracture, a number of broken ribs, a punctured 
Case Nos. 8-09-15 and 8-09-16 

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lung, and a torn diaphragm. William was unable to walk for four months and had 

to undergo physical therapy. Eventually William was able to return to work at 

Kirk Bros. on a part-time basis. As of December 2008, William was working 

thirty hours per week and only able to lift a maximum of twenty-five pounds. 

{¶10} William filed a claim with the Bureau of Workers’ Compensation 

(“BWC”) in 2007, which was allowed. Kirk Bros. appealed this decision through 

the administrative process. After exhausting its administrative remedies, Kirk 

Bros. appealed the allowance of William’s claim by the BWC in the Common 

Pleas Court of Logan County, Ohio. Accordingly, William filed a complaint in 

that court on June 9, 2008, claiming he was entitled to workers’ compensation 

because his injuries occurred in the course of and arose out of his employment. 

This complaint was assigned Case Number CV 08 05 0288 (on appeal, it is Case 

Number 8-09-15) and listed Kirk Bros. and the BWC as defendants.1

{¶11} A month later, William and his wife, Sharon, filed a complaint in the 

Logan County Common Pleas Court. This case was assigned Case Number CV 08 

07 0376 (on appeal, it is Case Number 8-09-16). This suit named Chris and 

Progressive Insurance Company as defendants and alleged causes of action for 

negligence and loss of consortium against Chris and requested coverage under the 

uninsured/underinsured motorist (“UM/UIM”) provision of their policy of 

 

1

 The BWC filed an answer to William’s complaint, admitting all the allegations of the complaint and 

requesting that William be allowed to participate in the Workers’ Compensation Fund. 
Case Nos. 8-09-15 and 8-09-16 

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insurance with Progressive.2

 This complaint was later amended on August 12, 

2008, to include Westfield as a defendant, alleging that Kirk Bros.’ policy of 

insurance with Westfield provided William with coverage for his accident in a 

company-owned vehicle. 

{¶12} Shortly thereafter, William and Sharon filed a motion in both cases 

to request that the two cases be “joined together.”3

 Westfield filed a similar 

motion, asking that the cases be consolidated and that Kirk Bros. and the BWC be 

joined as parties in Case No. CV 08 07 0376. The trial court consolidated these 

cases and ordered that the BWC be joined as a party-plaintiff and Kirk Bros. be 

joined as a party-defendant in CV 08 07 0376. 

{¶13} In October of 2008, Westfield filed a counter-claim for declaratory 

judgment against William and cross-claims for declaratory judgment against Chris 

and Kirk Bros., requesting that the trial court find that its policy of insurance for 

Kirk Bros. did not provide UM/UIM or liability coverage for William’s accident, 

that it had no obligations to Kirk Bros. from this accident, and that it had no duty 

to defend or indemnify Chris or Kirk Bros. for any liability for this accident. 

 

2

 Progressive later filed a motion for summary judgment, asserting that the Sammetingers’ policy of 

insurance did not include UM/UIM coverage. The Sammetingers admitted that their Progressive policy in 

effect at the time of the accident did not provide UM/UIM coverage, and summary judgment was granted 

to Progressive. Thus, the complaint as to Progressive was dismissed with prejudice and is not part of the 

instant appeals. 

3

 Although this motion requested joinder and referred to Civ.R. 19, the substance of the motion requested a 

consolidation of the cases. 
Case Nos. 8-09-15 and 8-09-16 

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{¶14} Kirk Bros. also filed a cross-claim against Westfield. In this claim, 

Kirk Bros. denied that William was entitled to participate in the Workers’ 

Compensation Fund because he was not injured in the course of and arising out of 

his employment with Kirk Bros. Kirk Bros. requested a declaration of its rights 

and Westfield’s obligations as to William’s accident under the policy of insurance, 

specifically requesting that the court declare that Westfield is required to provide 

coverage for William’s accident. 

{¶15} In the workers’ compensation suit, both Kirk Bros. and William filed 

motions for summary judgment. In the personal injury suit, Chris filed a motion 

for summary judgment, stating that he was immune from liability under the 

Workers’ Compensation Act, specifically R.C. 4123.741, as a “fellow employee” 

of the injured employee. Westfield also filed a partial motion for summary 

judgment as to liability coverage because of certain exclusions in its policy 

regarding workers’ compensation claims and bodily injuries to an employee 

arising out of and in the course of employment with the insured or while 

performing duties related to the conduct of the insured’s business.4

{¶16} On July 1, 2009, the trial court granted summary judgment in favor 

of William on his workers’ compensation claim and denied the summary judgment 

motion of Kirk Bros. as to this suit, finding that William’s injuries occurred in the 

 

4

 Westfield also argued that it was entitled to summary judgment regarding liability coverage under its 

“Fellow Employee” exclusion. However, Westfield later withdrew this argument, having discovered that 

Kirk Bros. paid an additional premium to remove the “Fellow Employee” exclusion from the policy. 
Case Nos. 8-09-15 and 8-09-16 

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course of and arising out of his employment with Kirk Bros. Having found that 

William was entitled to participate in the Workers’ Compensation Fund, the trial 

court also granted Chris’ motion for summary judgment under the fellow 

employee immunity statute and ordered that the complaint against him be 

dismissed with prejudice. Likewise, the court granted Westfield’s motion for 

summary judgment and ordered that the complaint against it be dismissed with 

prejudice. Subsequently, the court awarded William attorney’s fees and costs 

against Kirk Bros. pursuant to the Workers’ Compensation Act. 

{¶17} After the court determined that William was entitled to participate in 

the Workers’ Compensation Fund and issued its various grants of summary 

judgment, the only remaining issues involved were the cross-claims between Kirk 

Bros. and Westfield regarding whether Westfield was required to defend and 

indemnify Kirk Bros. and Kirk Bros.’ motion to strike Westfield’s defense that 

William’s injuries occurred in the course of and arising out of his employment 

with Kirk Bros. Thereafter, the trial court granted Westfield’s request for 

declaratory judgment and declared that Westfield had no duty to defend or 

indemnify Kirk Bros. In accordance with this determination, the court overruled 

Kirk Bros.’ motion to strike and dismissed its cross-claim for declaratory 

judgment. These appeals followed, and Kirk Bros. now asserts four assignments 

of error. 
Case Nos. 8-09-15 and 8-09-16 

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ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED IN DENYING DEFENDANTAPPELLANT KIRK BROS. CO., INC.’S MOTION FOR 

SUMMARY JUDGMENT AND FINDING THAT PLAINTIFFAPPELLANT WILLIAM SAMMETINGER’S INJURIES 

WERE RECEIVED IN THE COURSE OF, AND ARISING 

OUT OF, HIS EMPLOYMENT. 

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED IN GRANTING PLAINTIFFAPPELLEE WILLIAM SAMMETINGER’S AND 

DEFENDANT-APPELLEES CHRISTOPHER 

SAMMETINGER AND WESTFIELD INSURANCE 

COMPANY’S MOTIONS FOR SUMMARY JUDGMENT AND 

FINDING THAT SAMMETINGER’S INJURIES WERE 

RECEIVED IN THE COURSE OF, AND ARISING OUT OF, 

HIS EMPLOYMENT. 

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED IN AWARDING PLAINTIFFAPPELLEE WILLIAM SAMMETINGER STATUTORY 

ATTORNEY’S FEES AND COSTS BASED ON AN 

UNDERLYING ERRONEOUS FINDING THAT 

SAMMETINGER IS ENTITLED TO PARTICIPATE IN THE 

WORKERS’ COMPENSATION FUND. 

ASSIGNMENT OF ERROR IV

THE TRIAL COURT ERRED IN GRANTING 

DECLARATORY JUDGMENT IN FAVOR OF DEFENDANTAPPELLEE WESTFIELD INSURANCE COMPANY IN ITS 

CROSS-CLAIM AGAINST DEFENDANT-APPELLANT 

KIRK BROS.; IN DECLARING THAT WESTFIELD 

INSURANCE COMPANY HAS NO DUTY TO DEFEND OR 

INDEMNIFY KIRK BROS. OR ITS EMPLOYEES; AND IN 

DISMISSING KIRK BROS. CROSS-CLAIM AGAINST 

WESTFIELD INSURANCE COMPANY. 
Case Nos. 8-09-15 and 8-09-16 

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First, Second, and Third Assignments of Error 

{¶18} The first, second, and third assignments of error center upon the 

issue of whether William’s injuries were received in the course of and arising out 

of his employment with Kirk Bros. Thus, we elect to address these assignments of 

error together. 

{¶19} In its first two assignments of error, Kirk Bros. maintains that the 

trial court should have granted summary judgment in its favor and overruled 

William’s motion for summary judgment as to the workers’ compensation claim. 

Likewise, Kirk Bros. asserts that the motions for summary judgment of Chris and 

Westfield, which were premised upon a finding that William’s injuries were 

received in the course of and arising out of his employment with Kirk Bros., 

should also have been overruled. Alternatively, Kirk Bros. contends that a 

genuine issue of material fact exists regarding whether William’s injuries were 

received in the course of and arising out of his employment with Kirk Bros. 

{¶20} When reviewing a summary judgment ruling made by a court of 

common pleas from an appeal of a decision by the Industrial Commission, an 

appellate court applies the same standard used to review any other summary 

judgment ruling. Conley-Slowinski v. Superior Spinning & Stamping Co. (1998), 

128 Ohio App.3d 360, 363, 714 N.E.2d 991. The appellate court review of 

summary judgment is made independently, and without any deference to the trial 
Case Nos. 8-09-15 and 8-09-16 

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court. The standard of review for a grant of summary judgment is de novo. 

Hasenfratz v. Warnement, 3rd Dist. No. 1-06-03, 2006-Ohio-2797, citing Lorain 

Nat’l. Bank v. Saratoga Apts. (1989), 61 Ohio App.3d 127, 572 N.E.2d 198. 

{¶21} A grant of summary judgment will be affirmed only when the 

requirements of Civ.R.56(C) are met. This requires the moving party to establish: 

(1) that there are no genuine issues of material fact; (2) that the moving party is 

entitled to judgment as a matter of law; and (3) that reasonable minds can come to 

but one conclusion and that conclusion is adverse to the non-moving party, said 

party being entitled to have the evidence construed most strongly in his favor. 

Civ.R.56(C); see Horton v. Harwick Chem. Corp., 73 Ohio St.3d 679, 653 N.E.2d 

1196, 1995-Ohio-286, paragraph three of the syllabus. 

{¶22} Once the moving party demonstrates that he is entitled to summary 

judgment, the burden shifts to the non-moving party to produce evidence on any 

issue which that party bears the burden of production at trial. See Civ.R. 56(E). 

In ruling on a summary judgment motion, a court is not permitted to weigh 

evidence or choose among reasonable inferences, rather, the court must evaluate 

evidence, taking all permissible inferences and resolving questions of credibility in 

favor of the non-moving party. Jacobs v. Racevskis (1995), 105 Ohio App.3d 1, 7, 

663 N.E.2d 653. Additionally, Civ.R.56(C) mandates that summary judgment 

shall be rendered if the pleadings, depositions, answers to interrogatories, written 
Case Nos. 8-09-15 and 8-09-16 

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admissions, affidavits, transcripts of evidence, and written stipulations of fact 

show that there is no genuine issue as to any material fact and that the moving 

party is entitled to judgment as a matter of law. 

A. Summary Judgment for WilliamWorkers’ Compensation Case (No. 8-09-15)

{¶23} Kirk Bros. maintains that the trial court incorrectly applied the law 

to the facts of this case when it granted William’s, Chris’, and Westfield’s motions 

for summary judgment and overruled its motion. Specifically, Kirk Bros. asserts 

that William’s injuries did not occur “in the course of” and “arising out of” his 

employment with Kirk Bros. 

{¶24} Revised Code section 4123.01(C) defines a compensable injury 

under the Workers’ Compensation Act as the following: “‘Injury’ includes any 

injury, whether caused by external accidental means or accidental in character and 

result, received in the course of, and arising out of, the injured employee’s 

employment.” In order to participate in the fund, the employee must prove that 

the injury occurred while “in the course of” and “arising out of” the injured 

employee’s employment. Bralley v. Daugherty (1980), 61 Ohio St.2d 302, 303, 

401 N.E.2d 448. These two prongs are conjunctive, requiring both to be satisfied 

before compensation is allowed. Fisher v. Mayfield (1990), 49 Ohio St.3d 275, 

277, 551 N.E.2d 1271. In applying this test, the primary inquiry is “whether a 

‘causal connection’ existed between an employee’s injury and his employment 
Case Nos. 8-09-15 and 8-09-16 

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either through the activities, the conditions or the environment of the 

employment.” Bralley, 61 Ohio St.2d at 303, 401 N.E.2d 448. 

{¶25} To facilitate an analysis of the first prong, the Supreme Court of 

Ohio summarized “in the course of” employment in the following manner: 

The phrase “in the course of employment” limits compensable 

injuries to those sustained by an employee while performing a 

required duty in the employer’s service. “To be entitled to 

workmen’s compensation, a workman need not necessarily be 

injured in the actual performance of work for his employer.” 

An injury is compensable if it is sustained by an employee while 

that employee engages in activity that is consistent with the 

contract for hire and logically related to the employer’s business.

Ruckman v. Cubby Drilling, Inc., 81 Ohio St.3d 117, 120, 689 N.E.2d 917, 1998-

Ohio-455 (internal citations omitted). An assessment of this prong requires a 

consideration of factors such as “time, place, and circumstances” of the injury to 

determine the existence of a nexus between the employment and the activity 

causing the injury. Fisher, 49 Ohio St.3d at 277. “‘[I]f the injuries are sustained 

[off premises], the employee, acting within the scope of his employment, must, at 

the time of his injury, have been engaged in the promotion of his employer’s 

business and in the furtherance of his affairs.’” Ruckman, 81 Ohio St.3d at 121, 

689 N.E.2d 917, quoting Indus. Comm. v. Bateman (1933), 126 Ohio St. 279, 

paragraph two of the syllabus, 185 N.E. 50. 

{¶26} The second prong, “arising out of,” contemplates a determination as 

to whether a sufficient causal connection between the injury and the employment 
Case Nos. 8-09-15 and 8-09-16 

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exists to warrant compensation. Ruckman, supra. The analysis under this prong 

requires a totality of the circumstances review of the incident. The Supreme Court 

of Ohio put forth a framework of three basic factors to assist a court in 

determining whether an injury arose out of the employee’s employment: “1) the 

proximity of the scene of the accident to the place of employment; 2) the degree of 

control the employer had over the scene of the accident; and 3) the benefit the 

employer received from the injured employee’s presence at the scene of the 

accident.” Lord v. Daugherty (1981), 66 Ohio St.2d 441, 444, 423 N.E.2d 96. 

{¶27} In Fisher, the Ohio Supreme Court noted that the list of factors in 

Lord was not intended to be exhaustive, but rather illustrative, and that the proper 

approach to resolving the issue was based upon an evaluation of the totality of the 

circumstances, which would continue to evolve. Fisher, 40 Ohio St.3d at 279, 551 

N.E.2d 1271, n. 2. Thus, in making this determination, we must be mindful that 

workers’ compensation cases are intensely fact specific and a flexible and 

analytically sound approach is preferable to rigid rules that can lead to unsound 

and unfair results. Id. at 280. Further, the workers’ compensation statutes must be 

liberally construed in favor of the employee. R.C. 4123.95; Fisher, 49 Ohio St.3d 

at 278. 

{¶28} Generally, “an employee with a fixed place of employment, who is 

injured while traveling to and from the place of employment, is not entitled to 
Case Nos. 8-09-15 and 8-09-16 

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compensation under the Workers’ Compensation Fund because the requisite 

causal connection between injury and the employment does not exist.” MTD 

Products, Inc. v. Robatin (1991), 61 Ohio St.3d 66, 68, 572 N.E.2d 661, citing 

Bralley, supra. However, there are exceptions to the general rule barring 

compensation when the injury occurs while the employee is “coming and going” 

to and from his place of employment: if the injury occurs in the “zone of 

employment;” if it was a result of a “special hazard” of the employment; or if, 

based upon the totality of the circumstances, there is a sufficient causal connection 

between the injury and the employment to warrant compensation. Moreover, the 

Ohio Supreme Court has long recognized that exceptions exist to the requirement 

that the injury must be suffered at or near the place of employment or within the 

zone of employment: 

(1) where the employer, as an incident of the employment, 

provides the means of transportation to and from the place of 

employment; * * * and (3) where the employee is charged while 

on his way to or from his place of employment or at his home 

with some duty in connection with his employment. 

Stevens v. Indus. Comm’n. (1945), 145 Ohio St. 198, 200-201, 61 N.E.2d 198; see 

also, De Camp v. Youngstown Muni. Ry. Co. (1924), 110 Ohio St. 376, 379-380, 

144 N.E. 128; Fink v. Indus. Comm’n. (8th Dist. 1937), 25 Ohio Law Abs. 21; 

Keller v. Beacon Journal Publishing Co. (Feb. 21, 1996), 9th Dist. No. 17428, 
Case Nos. 8-09-15 and 8-09-16 

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1996 WL 73395, discretionary appeal not allowed by 76 Ohio St.3d 1438, 667 

N.E.2d 987 

{¶29} Here, the parties do not dispute that William was a fixed-situs 

employee. Rather, the issue is whether he was simply coming home from work, as 

the majority of Ohioans do every day, and thus not entitled to participate in the 

fund, or whether he was acting for the benefit of his employer when he was 

injured and thus entitled to workers’ compensation given the totality of the 

circumstances surrounding his injuries. We find the latter more accurately 

describes the facts of this case. 

{¶30} Notably, none of William’s off-site duties was disputed by any of 

the parties, including Kirk Bros. Every work day, William closed down the 

masonry work on the high school and loaded up the pick-up truck that was 

assigned to him by Kirk Bros. with tools and equipment belonging to Kirk Bros. 

for transport to and safe-keeping in William’s garage at home. Every day on his 

way home, he stopped for gas, which was needed to operate a number of tools for 

the construction of the high school the following day. He also stopped to purchase 

ice for the following day because fresh ice was required by contract to be provided 

by Kirk Bros. to the workers at the site every day. William also refueled his work 

truck every other day because the truck was needed to provide him with 

transportation to and from the site, to provide transportation for other workers who 
Case Nos. 8-09-15 and 8-09-16 

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may have needed a ride, and to deliver William’s paperwork to Dennis Lange in 

Lima once a week. The truck was also assigned to William for use on errands 

such as picking up equipment from other Kirk Bros.’ job sites to be used at the 

high school or to make a run to a local hardware store during the day, and to 

transport the water containers and ice to and from the job site every day. The ice 

and gas purchases, which always occurred either in Russells Point or Wapakoneta, 

were made with a credit card provided by Kirk Bros. 

{¶31} Once he was home, William parked the truck in his garage in order 

to protect the tools and equipment in the truck from theft because a fair amount of 

tools had been stolen from the job site. In addition, William occasionally 

performed small repairs and maintenance on some of these tools and pieces of 

equipment at his home. He also cleaned the water containers and re-filled them at 

his home because the contract required Kirk Bros. to supply fresh water to the 

workers every day. Often times, he had a significant amount of paperwork with 

him to complete because he was unable to finish it during the day because his 

attention was needed in some other function of his job. Therefore, he would 

complete this paperwork at home. 

{¶32} Throughout the day, beginning at approximately 5:00 a.m. and 

continuing until approximately 10:00 p.m., William received phone calls on his 

employer-provided cellular phone. As previously noted, these calls were for a 
Case Nos. 8-09-15 and 8-09-16 

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variety of work-related issues. Often times these calls occurred in the morning 

while William was going to the job site or during the afternoon while he was 

coming home from the job site. He also received work-related calls at his home. 

{¶33} Indisputably, with the exception of an occasional call from his wife, 

all of these actions by William were directly for the benefit of his employer, Kirk 

Bros. While the location where William bought the ice and gas was of his own 

choosing, stopping to purchase these items, bringing home the containers to clean 

them and fill them with fresh water, transporting the tools and equipment for safekeeping, completing his paperwork for timely delivery to Dennis Lange every 

week, and receiving and making phone calls whenever and wherever, were all 

performed solely for Kirk Bros.’ benefit and in an effort to further its best 

interests. In fact, William summarized it best in his deposition: “My scope of 

employment doesn’t end at 3:30 and doesn’t start at 7 o’clock. There are 

responsibilities that go with my position that I can’t control that need to be done, 

and I’m good at what I do, therefore I do it.” Once again, Kirk Bros. presented no 

evidence to contradict this statement by William or any of the foregoing evidence 

regarding the work-related use of the company truck by William. 

{¶34} Kirk Bros. also presented no evidence to demonstrate that William’s 

off-site activities were prohibited by it or that William was ever instructed to 

complete his tasks in a different manner. Although the credit card receipts would 
Case Nos. 8-09-15 and 8-09-16 

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have shown that the gasoline and ice were being purchased at a location over fifty 

miles away from the job site, as well as the undoubtedly high amount of gasoline 

that was being purchased to drive the truck from Wapakoneta to the high school 

and back every day, the record is devoid of any evidence that Kirk Bros. told 

William to purchase these items closer to the job site and not to use its truck and 

gasoline for daily transportation to and from his home. To the contrary, Kirk 

Bros., at a minimum, acquiesced to William making these purchases far from the 

job site and to using the truck for his daily commute. 

{¶35} Further, there is no evidence that William was ever instructed not to 

deliver his paperwork to Dennis Lange’s home, not to complete it at his home, not 

to work on, transport, or house any of the equipment at his home, or not to make 

and receive work-related calls after he left the job site. Rather, the evidence 

indicates that William’s position as a supervisor required him to shoulder a 

number of responsibilities, to act in the best interest of Kirk Bros.’ business, and to 

do what was necessary to effectively fulfill his role as supervisor, whether he was 

at the job site, off the job site, or en route to accomplish one of his many required 

tasks. Moreover, Kirk Bros. provided him with a vehicle, which he never used for 

personal business, and a phone to aid him in his duties. In sum, the evidence 

demonstrates that in many ways, the truck, which was under Kirk Bros.’ control, 

was William’s mobile work place. 
Case Nos. 8-09-15 and 8-09-16 

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{¶36} Furthermore, at the time of the accident, William had not completed 

his work for the day. The accident occurred at a point located between the high 

school and Russells Point. Russells Point was one of two locations where William 

always stopped for gas and ice, the other being in Wapakoneta, which William had 

yet to reach. Thus, William was still en route to purchase the gasoline and ice for 

the following day when the accident occurred. He also had yet to clean and fill the 

water containers for the following day. As was customary for him, he was also 

transporting a number of tools from the high school to his home for safe-keeping 

at the time he was injured. In addition, shortly before the accident, William 

received a work-related call on his cellular phone. 

{¶37} In short, Kirk Bros. provided the vehicle in which William was 

injured as an incident to his employment; at a minimum, Kirk Bros. acquiesced to 

the performance of some of his job duties being conducted on his way to and from 

work and at his home; it benefitted from the use of his garage to safely keep the 

vehicle and a number of its tools and equipment overnight; and Kirk Bros. 

required William to handle phone calls related to its business whenever they might 

occur, including on his drive to and from the job site and at his home. While Kirk 

Bros. may not have directly paid William for each minute he spent doing its 

business while en route to and from work and at home, as William admitted he 

never charged his employer for the time he spent after the job site closed for the 
Case Nos. 8-09-15 and 8-09-16 

-23-

day on any phone calls, getting gas and ice, cleaning and filling the water 

containers, or maintaining and repairing the equipment he transported, this fact is 

of little consequence in light of the benefit Kirk Bros. undoubtedly received from 

him. 

{¶38} Thus, given the broad spectrum of responsibilities that William had 

as a masonry supervisor for Kirk Bros., as well as the undisputed fact that these 

responsibilities necessitated him performing some of them away from the high 

school, including while en route to and at his home, the only reasonable 

conclusion in examining the totality of the facts and circumstances surrounding 

William’s injuries is that they occurred in the course of and arising out of his 

employment for Kirk Bros. Therefore, the trial court did not err in denying Kirk 

Bros.’ motion for summary judgment and granting William’s motion for summary 

judgment in the workers’ compensation suit, Case No. 8-09-15. Accordingly, the 

first assignment of error is overruled, as is that portion of the second assignment of 

error regarding William’s motion for summary judgment. 

B. Summary Judgments for Chris and WestfieldPersonal Injury Case (No. 8-09-16)

{¶39} Having found that the trial court did not err in determining that 

William was entitled to participate in the Workers’ Compensation Fund, the next 

issue is whether the trial court erred in the personal injury suit, Case No. 8-09-16, 

by granting Chris’ motion for summary judgment and Westfield’s partial motion 
Case Nos. 8-09-15 and 8-09-16 

-24-

for summary judgment as to liability coverage under the policy it issued to Kirk 

Bros. Both determinations by the trial court were based upon its conclusion that 

William’s injuries arose out of and in the course of his employment. 

1. Chris’ Summary Judgment

{¶40} As to Chris’ motion for summary judgment, the trial court found that 

William’s personal injury suit against Chris was barred by the fellow-employee 

immunity statute, R.C. 4123.741. This sections states: 

No employee of any employer, as defined in division (B) of 

section 4123.01 of the Revised Code, shall be liable to respond in 

damages at common law or by statute for any injury or 

occupational disease, received or contracted by any other 

employee of such employer in the course of and arising out of the 

latter employee’s employment, or for any death resulting from 

such injury or occupational disease, on the condition that such 

injury, occupational disease, or death is found to be 

compensable under sections 4123.01 to 4123.94, inclusive, of the 

Revised Code. 

Because Chris was an employee of Kirk Bros. and William’s injuries occurred in 

the course of and arising out of his employment with Kirk Bros., the trial court 

granted Chris’ summary judgment and dismissed the complaint against him. 

{¶41} Kirk Bros. does not dispute that Chris was a fellow-employee or that 

R.C. 4123.741 applies if William’s injuries are compensable under the workers’ 

compensation statutes. Again, it maintains that William’s injuries fall outside of 

the scope of workers’ compensation. Given our discussion regarding William’s 

injuries being compensable under the Workers’ Compensation Act and the 
Case Nos. 8-09-15 and 8-09-16 

-25-

undisputed fact that Chris was an employee of Kirk Bros. at the time of the 

accident, R.C. 4123.741 applies to bar recovery from Chris, and this portion of the 

second assignment of error is overruled.5

2. Westfield’s Summary Judgment

{¶42} As for Westfield, its policy with Kirk Bros. states: 

A. Coverage: 

We will pay all sums an “insured” legally must pay as damages 

because of “bodily injury” or “property damage” to which this 

insurance applies, caused by an “accident” and resulting from 

the ownership, maintenance or use of a covered “auto.” 

We have the right and duty to defend any “insured” against a 

“suit” asking for such damages or a “covered pollution cost or 

expense.” However, we have no duty to defend any “insured” 

against a “suit” seeking damages for “bodily injury” or 

“property damage” or a “covered pollution cost or expense” to 

which this insurance does not apply. We may investigate and 

settle any claim or “suit” as we consider appropriate. Our duty 

to defend or settle ends when the Liability Coverage Limit of 

Insurance has been exhausted by payment of judgments or 

settlements. 

{¶43} In this case, the trial court determined that Chris was not liable for 

any damages to William and Sharon because of the immunity afforded to him by 

 

5

 We also note that after the grant of summary judgment to Chris and Westfield but prior to the time period 

to appeal expired, William and Sharon settled their claims against Chris and Westfield, releasing all claims 

against them, and never filed an appeal of the court’s decision as to summary judgment in favor of Chris 

and Westfield. After Kirk Bros. filed its appeals in these cases, Chris and Westfield filed motions to 

dismiss the appeals against them with this Court as being moot because the complaint against them was 

fully settled. Although we overruled these motions, we now note that even if we were to determine that 

William was not entitled to participate in the fund, William’s and Sharon’s claims against Chris cannot be 

revived due to the language of the settlement. Thus, whatever our decision in this case, the claims against 

Chris by his parents are settled. Nevertheless, we elected to discuss this portion of the assignment of error 

to demonstrate that William’s entitlement to participate in the fund affected the remainder of Case No. 8-

09-16. 
Case Nos. 8-09-15 and 8-09-16 

-26-

R.C. 4123.741. Kirk Bros. was not sued for damages. The insurance policy 

specifically states that Westfield would pay for all sums an insured must pay as 

damages because of bodily injury caused by an accident and resulting from the use 

of a covered auto. While the term “damages” is not defined in the policy, the rules 

of contract construction require that this word be given its plain and ordinary 

meaning. See Alexander v. Buckeye Pipeline Co. (1978), 53 Ohio St.2d 241, 

paragraph two of the syllabus, 374 N.E.2d 146, superceded by statute on other 

grounds. 

{¶44} “‘Damages’ has been defined as the pecuniary compensation paid by 

a wrongdoer for the losses suffered by an injured person.” Meek v. Gem Boat 

Service, Inc. (1990), 69 Ohio App.3d 404, 409, 590 N.E.2d 1296, citing Cincinnati 

v. Hafer (1892), 49 Ohio St. 60, 67, 30 N.E. 197; Greer v. Knox Cty. Bd. of 

Commrs. (1927), 33 Ohio App. 539, 169 N.E. 709; Drayton v. Jiffee Chem. Corp.

(N.D.Ohio 1975), 395 F.Supp. 1081. Therefore, in light of this definition, the trial 

court correctly granted partial summary judgment in favor of Westfield as to the 

issue of liability coverage on the claims between it, William and Sharon, and Chris 

because Chris did not have to pay any damages due to bodily injury in the 

personal injury suit. Accordingly, this portion of the second assignment of error is 

also overruled. 
Case Nos. 8-09-15 and 8-09-16 

-27-

C. Attorney’s Fees and Court CostsWorkers’ Compensation Case (No. 8-09-15)

{¶45} The third assignment of error also relates to the determination of 

whether William’s injuries are compensable under the Workers’ Compensation 

Act. Here, Kirk Bros. asserts that the trial court’s award of attorney’s fees and 

costs to William was in error because the trial court improperly found his injuries 

to have occurred in the course of and arising out of his employment with Kirk 

Bros. Kirk Bros. does not contend that an award of attorney’s fees and costs to 

William is improper if his injuries were, in fact, occasioned in the course of and 

arising out of his employment pursuant to R.C. 4123.512(F). This section 

mandates that the cost of any legal proceedings authorized by that section, 

including attorney’s fees up to $4,200.00, be taxed to the employer if it is 

determined that the employee is entitled to participate in the fund by a final 

determination of an appeal.6

 Based upon our determination as to William’s right 

to participate in the fund, the third assignment of error is also overruled. 

Fourth Assignment of Error

{¶46} In the fourth assignment of error, Kirk Bros. maintains that the trial 

court erred in granting declaratory judgment in favor of Westfield on its crossclaim against Kirk Bros., in declaring that Westfield had no duty to defend or 

 

6

 The section taxes these amounts to the industrial commission if the commission, rather than the employer, 

contests the employee’s claim. 
Case Nos. 8-09-15 and 8-09-16 

-28-

indemnify Kirk Bros. or its employees, and in dismissing Kirk Bros.’ cross-claim 

for declaratory judgment against Westfield. 

{¶47} The Ohio Supreme Court has held that “‘[t]he granting or denying of 

declaratory relief is a matter for judicial discretion[.]’” Mid-American Fire & 

Casualty Co. v. Heasley, 113 Ohio St.3d 133, 863 N.E.2d 142, 2007-Ohio-1248, 

at ¶ 12, quoting Bilyeu v. Motorists Mut. Ins. Co. (1973), 36 Ohio St.2d 35, 37, 

303 N.E.2d 871. Thus, declaratory judgment actions are to be reviewed under “an 

abuse-of-discretion standard.” Heasley, supra. Abuse of discretion “connotes 

more than an error of law or judgment; it implies that the court’s attitude is 

unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore (1983), 5 

Ohio St.3d 217, 219, 450 N.E.2d 1140. 

{¶48} In the case sub judice, both Westfield and Kirk Bros. filed crossclaims against one another for declaratory judgment, requesting that the trial court 

determine the rights and responsibilities of the parties based upon the insurance 

policy. In addition to the previously quoted language from the policy at issue, this 

policy contained the following exclusions: 

B. Exclusions 

This insurance does not apply to any of the following: 

* * * 

3. Workers’ Compensation 
Case Nos. 8-09-15 and 8-09-16 

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Any obligation for which the “insured” or the “insured’s” 

insurer may be held liable under any workers’ compensation, 

disability benefits or unemployment compensation law or any 

similar law. 

4. Employee Indemnification And Employer’s Liability 

“Bodily injury” to: 

(a) An “employee” of the “insured” arising out of and in the 

course of: 

(1) Employment by the “insured”; or 

(2) Performing the duties related to the conduct of the 

“insured’s” business; * * * 

This exclusion applies: 

(1) Whether the “insured” may be liable as an employer or in 

any other capacity; * * * 

{¶49} The policy also contained an exclusion for a “Fellow Employee”, 

which stated: “Bodily injury” to any fellow “employee” of the “insured” arising 

out of and in the course of the fellow “employee’s” employment or while 

performing duties related to the conduct of your business.” Initially, Westfield 

also relied upon this exclusion to assert that it had no duty to defend or indemnify. 

However, at some point in the litigation, Westfield discovered that Kirk Bros. had 

paid an additional premium for an endorsement that removed the fellow employee 

exclusion from the relevant portions of the policy. Kirk Bros. contends that this 
Case Nos. 8-09-15 and 8-09-16 

-30-

endorsement modified the policy in such a way so as to include the precise 

scenario at issue in this case in its coverage. 

{¶50} As previously noted, Kirk Bros. was not sued for damages either in 

the personal injury suit against Chris and Westfield or in the workers’ 

compensation case. Chris was sued for damages, but this claim was dismissed 

with prejudice and later completely settled. Westfield was sued for damages by 

William and Sharon under the coverages provided by its policy. However, Kirk 

Bros. was only made a party to the personal injury suit because it was the holder 

of the policy under which Westfield was sued for coverage. The only claim made 

against Kirk Bros. in that case was the declaratory judgment cross-claim filed by 

Westfield. Although named as the defendant in the workers’ compensation case, 

William’s request for relief was not for damages from Kirk Bros. but that he be 

allowed to participate in the fund. Thus, there were no monetary damages for 

which to indemnify Kirk Bros., and the trial court did not abuse its discretion in 

declaring that Westfield had no duty to indemnify Kirk Bros. in Case No. 8-09-16, 

the personal injury suit. 

{¶51} However, the question remains as to whether Westfield had a duty to 

defend Kirk Bros. in the personal injury suit by William and Sharon against Chris 

and Westfield. The insurer’s promise to indemnify is separate and distinct from its 

obligation to defend an insured in an action, and the duties are triggered by 
Case Nos. 8-09-15 and 8-09-16 

-31-

different events. Cincinnati Ins. Co. v. Anders, 99 Ohio St.3d 156, 789 N.E.2d 

1094, 2003-Ohio-3048. “Where the complaint brings the action within the 

coverage of the policy the insurer is required to make defense, regardless of the 

ultimate outcome of the action or its liability to the insured.” Motorists Mut. Ins. 

Co. v. Trainor (1973), 33 Ohio St.2d 41, paragraph two of the syllabus, 294 

N.E.2d 874. The Ohio Supreme Court has since expanded this concept, holding 

“[w]here the allegations state a claim that falls either potentially or arguably 

within the liability insurance coverage, the insurer must defend the insured in the 

action.” Willoughby Hills v. Cincinnati Ins. Co. (1984), 9 Ohio St.3d 177, 180, 

459 N.E.2d 555. 

A liability insurer’s obligation to its insured arises only if the 

claim falls within the scope of coverage. Cincinnati Indemn. Co. 

v. Martin (1999), 85 Ohio St.3d 604, 605, 710 N.E.2d 677. An 

insurer has a duty to defend the insured “[w]here the allegations 

state a claim that falls either potentially or arguably within the 

liability insurance coverage.” Cincinnati Ins. Co. v. Anders, 99 

Ohio St.3d 156, 789 N.E.2d 1094, 2003-Ohio-3048, at ¶ 18. 

Conversely, “[t]he insurer need not provide a defense if there is 

no set of facts alleged in the complaint which, if proven true, 

would invoke coverage.” Martin, 85 Ohio St.3d at 605, 710 

N.E.2d 677. Where the action alleged claims that fell within the 

insurance coverage yet the conduct that prompted the action “is 

so indisputably outside coverage,” the insurer has no duty to 

defend, so long as the insurance policy only required the insurer 

to defend against claims to which the coverage applied. 

Preferred Risk Ins. Co. v. Gill (1987), 30 Ohio St.3d 108, 30 OBR 

424, 507 N.E.2d 1118. The duty to defend need not arise solely 

from the allegations in the complaint but may arise at a point 

subsequent to the filing of the complaint. Willoughby Hills v. 
Case Nos. 8-09-15 and 8-09-16 

-32-

Cincinnati Ins. Co. (1984), 9 Ohio St.3d 177, 9 OBR 463, 459 

N.E.2d 555. 

Twin Maples Veterinary Hosp. v. Cincinnati Ins. Co., 159 Ohio App.3d 590, 2005-

Ohio-430, 824 N.E.2d 1027, ¶¶ 11-12. 

{¶52} In this case, the policy clearly states that Westfield has a right and 

duty to defend its insured (Kirk Bros.) against a suit asking for damages. As 

noted, no such suit existed. Therefore, there was no suit against Kirk Bros. that 

invoked the obligation of Westfield to defend it. As such, the trial court did not 

abuse its discretion in determining that Westfield had no duty to defend Kirk Bros. 

in the personal injury action. 

{¶53} Nevertheless, Kirk Bros. asserts that its “damages” are the increase 

in premiums that it must pay to the fund because of William’s claim. However, 

the Revised Code expressly prohibits contracts and agreements for 

indemnification or insurance for an employer’s loss or liability for the payment of 

compensation to workers for injury occasioned in the course of the workers’ 

employment. R.C. 4123.82(A). This section states: 

A) All contracts and agreements are void which undertake to 

indemnify or insure an employer against loss or liability for the 

payment of compensation to workers or their dependents for 

death, injury, or occupational disease occasioned in the course of 

the workers' employment, or which provide that the insurer 

shall pay the compensation, or which indemnify the employer 

against damages when the injury, disease, or death arises from 

the failure to comply with any lawful requirement for the 

protection of the lives, health, and safety of employees, or when 
Case Nos. 8-09-15 and 8-09-16 

-33-

the same is occasioned by the willful act of the employer or any 

of the employer's officers or agents, or by which it is agreed that 

the insurer shall pay any such damages. 

R.C. 4123.82(A). Thus, any such contract whereby Westfield would have to 

indemnify Kirk Bros. for its loss, including increased premiums, based upon a 

workers’ compensation claim is void. See id. 

{¶54} Accordingly, Westfield had no duty to indemnify Kirk Bros. for its 

increased premiums, and the trial court did not abuse its discretion in declaring 

that Westfield had no duty to indemnify Kirk Bros. in Case No. 8-09-15. 

Moreover, Westfield also had no duty to defend Kirk Bros., and the trial court, 

likewise, did not abuse its discretion in declaring that Westfield had no duty to 

defend Westfield on this claim. Therefore, the fourth assignment of error is 

overruled in its entirety. 

{¶55} For all these reasons, the assignments of error are overruled and the 

judgments of the Common Pleas Court of Logan County, Ohio, in both cases are 

affirmed. 

 Judgments Affirmed

ROGERS, J., and *DONOVAN, J., concur. 

* (MARY E. DONOVAN, J., from the Second District Court of Appeals 

Sitting by Assignment) 

/jlr